Of secondary boycotts, free speech and… revenue

February 5, 2011 – 5:50 am

By skepticlawyer

As many of our readers are aware, the rather spiffy advertisements that–until recently–ran here (as well as on Larvatus Prodeo, Club Troppo and Jennifer Marohasy, to cover the political spectrum) were brokered by Online Opinion’s Graham Young. Graham–who both Legal Eagle and I consider a personal friend–is an internet ‘old hand’ who negotiated high quality Nielsen ratings for the blog as well as decent advertising remuneration. This matters, because (unless you are very lucky), Google ads pay very little.

If there is such a thing as a blogging ‘scale’, skepticlawyer was ‘medium-sized’. We averaged–and average–between 5,000 and 10,000 unique readers a week. Thing is, our readers are all ‘A/B’ readers. They’re lawyers, academics and policy wonks, in both Australia and the UK. The revenue from the ads Graham brokered paid off my Australian credit card as well as covering our hosting fees, the odd nice meal for all of us and high quality graphic design for the site. Jacques Chester–a hamster-wrangler and tech guru of real ability–landed himself a plum industry job based on his work as a programmer for several sites (known collectively as ‘Ozblogistan‘), including this one. My application for a scholarship at the Scottish Bar was held in high esteem thanks to the quality of this site. I wouldn’t be studying my Roman/Scots law conversion course without it–it would otherwise cost me £8000. I don’t know about you, but I don’t happen to have £8000 just sitting around.

Larger sites–Larvatus Prodeo comes to mind–were not only able to build marketshare and audience, but really contribute to intelligent political debate in Australia. LP (based on the ever-reliable Nielsen stats) is about 3-4 times the size of skepticlawyer. The fact that he’s built such a successful site is a credit to Mark Bahnisch and his team of writers. LP is a major place if you’re on the political left. Disagree with LP’s ‘party line’ if you must (we have, plenty), but Mark runs a tight ship and the quality of debate there is high. They’re not as anal-retentive as we are, but then, we’re lawyers and techies. We’re allowed (to be anal retentive, that is).

This is why (with some reluctance), it’s my duty to inform you that Online Opinion (and, by extension, the sites for which Graham brokers advertising) have become the victims of a secondary boycott. Secondary boycotting involves circumstances in which two or more people act in concert so as to engage in conduct that hinders or prevents a person from dealing with the target entity. It is illegal under the Trade Practices Act. The secondary boycott has its origins in a decision (by Graham as CEO of Online Opinion) to publish an article by Bill Muehlenberg attacking gay marriage.

Muehlenberg’s article is (not to put too fine a point on it) crap. In a nutshell, he thinks that the only form of marriage that has ever existed is ‘Christian marriage’, and that it has always and everywhere existed in the same form. And, oh noes! TEH GAY want to turn it into polyamory, or something…

I can quote you chapter and verse indicating the extent to which he’s got marriage wrong when it comes to pagan Roman law. I can even quote you the relevant Constantinian (ie, after 312 AD) legislation banning gay male marriage, as well as whinges and bitches from Jews in the first century AD about the Romans (and other people in the Empire) permitting Lesbian marriage. I can also quote a charming letter from an early 2nd century AD Roman centurion to two (married) women in Roman Egypt. Ten years earlier, he’d helped the ladies in question become mums, and now he’s got some leave, he’d like to visit ‘his’ daughter. He even asks how she’s going at school, and reveals that the men in his contubernium (a Roman ‘squad’ or ‘section’) are still as jealous as all get out about the fortnight in the sack he spent with two good-looking women.

Then there was the general ‘pagan double standard’. The Romans didn’t care about a woman being virgin or not before she married, but they did care about (female) monogamy in marriage (this is, in case you hadn’t noticed, deeply Darwinian). As long as he didn’t ‘screw around under his own roof’, then a Roman citizen male could bang who he liked. His wife could not. This was particularly the case if she ‘didn’t put out’. Roman law was very hard on rape in marriage, making it a crime, not a delict (tort). Christianity told men to be monogamous, but let them rape their wives. Christians can bury their heads in the sand until the cows come home, but deciding which legal regime is better for women is a no-brainer. As my Roman law tutor here in Edinburgh says, ‘the man who openly leches after you may not be your enemy; the man who wants to give you sexual dignity may not be your friend’.

There were other elements, too. Sometimes screwing around (for both sexes) was part of religious observance. In which case all the rules described above went out the window.

Put it this way, the Romans applied ‘Rule 34‘ of the Internet to marriage (caution, TV Tropes link). Even worse, if a form of marriage existed in the Roman Empire, there was probably a religion built around it. They had more religions than the Yanks have cable channels. Seriously. Marriage forms in different religions included: sibling marriage; cousin marriage; public sex; and a bit more public sex (nicely covered in the BBC/HBO series Rome, in this case tied to property law and transfer of title); temple prostitution (both sexes); polygyny; polyandry; polyamory (people routinely contracted around Augustus’ marriage laws–designed to encourage monogamy–as the jurist Modestinus documents). You get the idea. The Romans had a large multicultural empire to run. As Gaius, the greatest of Roman jurists remarks ‘marriage is universal, but its forms are contingent’ [D. 1.9.1].

In short, marriage is a lot older than Christianity, and has operated perfectly successfully under different rules (often less sexist or homophobic than Christian or Islamic rules, sometimes more) in other systems. And we are all still here. Deal with that fact, peeps.

Then, after I’ve done my bit, Lorenzo our resident medievalist will no doubt turn up and document the extent to which Muehlenberg has got it wrong when it comes to the medieval period.

In short, Muehlenberg is a legally illiterate dill.

That does not mean, however, he should be silenced. It particularly does not mean that Graham Young, Online Opinion and by extension all the blogs Graham brokers advertising for should be taken to endorse anything or everything Bill Muehlenberg says. That, my friends, is straying into secondary boycott territory.

It is important to remember the distinction between primary boycotting and secondary boycotting, which is destructive precisely because it is so sloppy, generating collateral damage. For example, assume that a group has a complaint against the Acme Company. Assume further that the Widget Company is the major supplier to the Acme Company. If the complaining group informs the Widget Company that it will persuade the public to stop doing business with the company unless it stops doing business with Acme Company, such a boycott of the Widget Company would be a secondary boycott. The intended effect of such a boycott would be to influence the actions of Acme Company by organizing against its major supplier. I hope it is clear from this why secondary boycotting is much nastier than primary boycotting, and why the law takes such a dim view of it.

Gay rights activists have taken a set against Graham’s willingness to publish material from all sides of the gay marriage debate, and now the ugly shit-fight has made The Australian. They are trying to drive Graham broke, and they don’t care who gets burnt in that process.

When I spoke to him on Wednesday, [Graham] Young said it wasn’t the first time advertisers had made life hard. A group called Ethical Investments had objected after their ads sometimes appeared on pages alongside articles questioning anthropogenic global warming. [Legal Eagle wrote one of those; I remember the ads].

On account of the Muehlenberg piece, Young told me two major advertisers had just pulled out: the ANZ Bank and IBM. Comparing this year’s January gross ad sales with last year’s, he calculated that revenue from his main category of advertising had fallen by 96 per cent. Young is worried that these bizarre decisions will adversely affect other websites as well as his own and could even lead to some of them closing down.

Courts might construe that as the result of an indiscriminate secondary boycott, in contravention of the Trade Practices Act.

That’s because Young and a group of other political sites have formed a network called The Domain, to bundle up their readers as a more attractive package for advertisers. The sites are very diverse in terms of ideology, from the ultra-leftist John Passant, to the more mainstream centre-Left Larvatus Prodeo, Club Troppo, Andrew Bartlett, skepticlawyer and the likes of Henry Thornton and Jennifer Marohasy.

Do read Pearson’s piece; it’s a good and careful documentation of something that this lawyer has long suspected was coming: a straight-up, bald conflict between the Trade Practices Act and internally developed hate speech and advertising codes. It is something about which we as a society will have to make a call. Personally, I think that the hate speech and advertising codes will have to go, because I think that markets subject to law are more civilising than social practice subject to law. Pearson gives me more credit than I deserve at the end of his article, but even so, his point is a serious one. I’ve long suspected that people from groups who perceive that they’re oppressed need to ‘man up’. People who haven’t liked me or something I’ve written have variously (a) stalked me (b) sent me postpaks of dog shit (c) rung around to ensure that I don’t get any more work (documented in Mark Davis’ Gangland: Cultural Elites and the New Generationalism) and (d) made me the victim of serious physical assault. I’ve coped with it all and come out the other side. And if I can (with no advantages to speak of), then so can you.

If you don’t like Online Opinion publishing stuff by Bill Muehlenberg, then complain with candour, not with a secondary boycott. If you don’t want to be stereotyped, then don’t behave in ways that fit the stereotype. That means, if you’re a gay man, don’t be a bitch. Above all, fight freedom’s cause in freedom’s way.

Let me explain.

One prominent UK Tory I’ve come to know over here has given me a clear example of how fighting for freedom’s cause in freedom’s way operates in practice, and what happens when you do the opposite.

This Tory once made some mildly anti-abortion remarks in a speech. Those remarks found their way to anti-abortionistas in the US. This meant he received–over a period of months–thousands upon thousands of letters from anti-abortionistas in both the UK and the US. Eventually, the latter came to outnumber the former. He had to hire a second secretary to deal with correspondence from what he called ‘the green crayon brigade’ so he could properly represent his own constituents separate from abortion as ‘an issue’. Most of the ‘green crayonistas’ came from the US. The secretary he hired to deal with them was paid for by the British taxpayer.

Over time, he came to resent their desire to drain him of time and (taxpayer’s) money a great deal. So much so that he has changed his view on abortion. ‘If you have to argue your case like that, then there is likely something wrong with both you, and with your cause’. He is no longer anti-abortion, supporting abortion up until birth without restriction.

The gay rights activists secondary boycotting Graham Young and Online Opinion could learn from his story. It breaks down like this:

Not everyone will accept you (get them to tolerate you, and you’ll be doing fine). Many people will still want to mock you (the Romans tolerated gay marriage, but much of their humour involved taking the piss out of ‘the man in a dress’; read Martial if you want good examples thereof). Apart from this, those of us who do support gay marriage can be turned off by bad behaviour. One of the reasons why Martin Luther King and Harriet Taylor Mill were successful in their claims (race; gender) is because they asked for those rights nicely. And there is a reason why Malcolm X and Andrea Dworkin are still roundly excoriated: good manners go a long way. Asking nicely and fighting fair are very important, unless one wishes to be consigned to the outer darkness.

Finally, why is secondary boycotting so nasty? Primary boycotts are an economically efficient way of managing differences of opinion, because they are precise. They attack a single person without violence. Secondary boycotts, like the ill-targetted bombing campaigns so hated by anti-war leftists, are replete with collateral damage. They don’t just excoriate Bill Muehlenberg, but Graham Young, Larvatus Prodeo, EnPassant, Jennifer Marohasy and Ken Parish, Helen Dale, Deus Ex Macintosh, Mary-Helen Ward and Katy Barnett. People who might otherwise be on your side…

16 Comments

A word of explanation re Kirby
A judge, having sworn to uphold the law, is in a terrible situation if he repeatedly breaks it. Did I support the anti-homosexual provisions of the criminal code? No, I fought for law reform. And so, by giving us strategic legal advice, did Bray, until the law was changed, although until that time he both obeyed and upheld the law then in force. Was it a terrible price for him to pay? Yes, but he took his oath of office very seriously. Were either of us consumed with self-hatred? Of course not.

Mr Pearson, just for my layman’s understanding, would you please answer my query @42 above? In other words could you please refer me to any “reconsideration” you might have published re Kirby as a follow on from your article which was published under the header “Kirby Must Stand Down”.

Christopher, it’s the fundamental problem with a foolish law: when can we say that a law is so stupid that we’re not going to follow it? If a law is observed more in the breach than the observance, I tend to think it’s starting to look like a stupid law. But does that mean we can break it? For me, it really depends on the circumstances.

Realistically, though, we all bend the law sometimes. When we had water restrictions, I used to occasionally cheat and water my plants on an “odd” day if they looked like they were going to die, and then only water them a little the next day (so that the net water use was the same). Technically, I was breaking the law. Does that make me a bad person? Does it mean that I can’t be a judge? If it is different from breaking the law outlawing homosexuality, how is it different? Where do we draw the line? Actually, I don’t know the answer to these questions.

Legislating against homosexuality (or homosexual intercourse, at least) is really like trying to make water run uphill. My personal view is that laws against it are so stupid and against human nature that they shouldn’t be followed. Perhaps that was Kirby J’s view too? But I can see how people’s views could differ, and it was honourable of yourself and Bray CJ to do otherwise. In fact, the whole story makes me feel really sad. I am sorry that society and its stupid laws tied people in such knots.

I know another lawyer who doesn’t much like Kirby. It’s not the fact that Kirby’s gay, but the fact that he’s so self-righteous that gets this guy. Was that the source of your irritation, perhaps?

@35
I don’t see anything in those comments that strengthens you arguments. In fact you say:
“All jurisdictions of which I am aware permit secondary boycotts when these are undertaken by consumer”

On the facts that would appear to be the case. The activists would claim that they are the consumers and they are staging a protest. I think you’ve missed the whole point of the “trade and commerce” requirement of the Act as well. You appear reticent to set out exactly what you key arguments with regard to the statute would be or failing that the case law you’d cite. I mean thanks for the legal lesson and all but i’m more interested in exploring why you continue to pursue what was obviously an off the cuff comment (“secondary boycott”) without providing any argument.

@37,
I don’t think I mixed up anyone. The poster @29 was trying to cite the HLS convictions to support a secondary boycott argument (not necessarily a legal action). It’d be caned in a year 10 debate let alone a courtroom. I was trying to show the stupidity of the poster’s comments and I succeeded.

In reply to KVD and Leagal Eagle:
It has long been standard practice for judges accused by MPs of such behaviour to announce they’ll not to sit on related cases until cleared and doing so is widely understood as in no sense an admission of guilt. Rather it is a matter of judicial prudence to protect the standing of the office and it recognises the imperative that justice be both done and seen to be done. If you read the piece carefully, you’ll see that the headline is grossly misleading because I nowhere suggest that Kirby should “stand down”, which is a very different course of action, a distinction lost on some booby of a subeditor at the time. I never suggested that he was guilty and so had no need to “reconsider” when, shortly after, his innocence of the accusations was established. But it must be said that a more scrupulous judge would have declined to sit on such cases until the forged Comcar details were exposed.
Legal Eagle, as you know, I campaigned to change a bad law and have no regrets about the change per se. But it involved criminal sanctions of up to 10 years’ imprisonment, as I recall, and I don’t think it can usefully be compared to disregarding watering restrictions, no matter how “common-or-garden” gay sex now seems to most people. It may not be much more helpful to quote the line that”the past is another country and people did things differently there” but it’s true nonetheless. My reservations about Kirby are based on a lack of judicial scrupulosity in an era where law reform was underway ( more excusable, I suppose, in the former head of the Law Reform Commission) and the –to my mind bizarre — decision that he could simultaneously be a practising Anglican and a practising homosexual, an option even David Marr could see just wasn’t on.

“Mel – if you wrote something criticising CP which was ill-reasoned and silly, I’d simply set you straight. I’m afraid that I’ve developed a pretty thick skin about that particular issue by now, being called spazzo all through childhood will do it.”

I’m depressed to here that. I truly am. If you chose to become a militant disabled rights activist as a result I wouldn’t blame you.

According to Christopher Pearson’s reasoning any black person who broke the Jim Crow laws in the American Deep South was a “bad nigger”. I suppose the same goes for Jews who broke the Nuremberg laws in Germany.

KVD — If I could have persuaded the editor or the boobies then in charge of subbing to print a column header pointing to their error, believe you me, I would have done so. I pointed out their egregious mistake to them at the time but there was no suggestion they’d openly admit, in the Maoists’ telling phrase that ‘error has been committed’. BTW, You still don’t seem to get the idea that accusations made under parliamentary privilege are weighty enough per se to warrant a ‘what if’ ‘story and to oblige the judge to decline to sit on related cases. I didn’t actually accuse Kirby of anything and, hard as you may find it to imagine, despite our differences of opinion, bore him no ill will.

KVD — indeed you did post politely, and had I seen it rather than busily composing my own post I’d have said so. Perhaps, given the amount of piling on that’s been happening to me in the last 36 hours, you’ll make allowances. In the matter of grounds for a ‘what if’ piece, you’ll find that columnists of all political persuasions do it all the time and I doubt anyone who writes opinion loses any sleep over doing so. At any rate, none I’ve ever met.

I couldn’t care less if Pearson was then or is now a self-hater, though it seems a pretty justifiable position on present evidence. But I do care when he turns hatred on others, as his invocation of buggery (that’s the old homophobic fixation on anal sex) in the Kirby piece did. Pearson was wrong also to call for Kirby to recuse himself from appeals concerning under age sex convictions (judges have to be tougher than that and of course it remained open for any appellant or respondent to make an application if they chose), and his comments in this thread have revealed the semblance of solicitude and respect for Kirby in that piece as the saccharine lacing it was.

I probably don’t even care beyond a matter of ancient gossip whether Bray and Pearson consummated their love, how they did it if so (intercrural? buggery? something else?), and whether and if so how Pearson waited out any “cruel dilemma” on the “cusp of law reform” in SA (I assume from 1972 to 1975), though since Pearson has raised these matters in relation to Kirby I don’t see why he should hold back on the details.

In the meantime, the claim of a breach of s 45D has yet to be made good at even a general level, as Patrickb has rightly reminded us, and the advertisers for gay dating sites whose ads pop up on my version of Muehlenberg’s piece are probably wasting their money too.

Perhaps, given the amount of piling on that’s been happening to me in the last 36 hours, you’ll make allowances.

“Piling on” does tend to make one upset. It also tends to make one even more suspicious of the activists who are piling on you (SL’s green crayon brigade). I think all of us on the blog have experienced it, and it’s really not pleasant

Look, my own opinions differ from yours in many things, I suspect, and I don’t much like that Kirby article, but I’m definitely prepared to give credit where I think you’ve got it bang on (as in the piece you wrote for The Australian the other day). And difference of opinion doesn’t bother me so much. How boring it would be if we all agreed! SL and I disagree on many things, and it’s what keeps me blogging.

If I were a religious gay person, I’d purge the Bible of all the homophobic bits and set up my own church of the Latter Gay Saints (seriously, I’m not joking). It’s not as if the Bible hasn’t been purged plenty of times (witness all those apocrypha, and all those fights about what is and isn’t the true doctrine). But then I’m with Lorenzo: I’ve never liked St Paul’s Gospels much. SL made me feel a lot more sympathetic to him when she showed me Shelby Spong’s theory that St Paul was a conflicted homosexual himself – that “rang true” to me, although who can tell?

Luckily for me, perhaps, I’m neither Christian nor a homosexual man, so it’s not something I have to wrestle with personally. I have seen gay and lesbian friends who are totally tied in knots by religion (one friend was convinced he was going to Hell in a handcart for having homosexual feelings, for goodness sakes).

I’m depressed to here that. I truly am. If you chose to become a militant disabled rights activist as a result I wouldn’t blame you.

Personally, I think success is the best revenge. And these days, when people say thoughtless or inappropriate things, I am able to put them in their place. One idiot at a former workplace said something about the odd way I walk when I’m tired, and I made him so uncomfortable about what he said that he used to blush to look at me thereafter. That’s just my personal way of dealing with things. As I said above, I’m not an activist type. I don’t go in for grand gestures or things like that. I prefer reasoned argument.

Ah, the joys of different time zones, and what one therefore awakes to find of an early Sunday morning.

This thread has, um, degenerated somewhat, and has got to the stage where it is probably best left alone. I am reluctant to close threads, but I suspect this may be the best thing in all the circumstances here. We are now getting into complicated personal accounts involving prominent living persons and what are very likely irreconcilable differences, not only in matters of politics, but also religion and sexual history. In my experience, these are not things easy to resolve. Sometimes they can’t ever be resolved, and maybe that’s something I just have to accept. I am going to steal LE’s line about making water run uphill and apply it to resolving differences of this type, because I suspect that the latter may actually be harder than the former.

I have ‘real’ work to do today (as in, work I am paid to do by the Scottish taxpayer), and neither the time nor the inclination to police this thread and interpose comments. This does not mean I dislike you, or that you won’t be welcome to comment on other threads in the future. It just means I don’t like where this one is going.

[…] by Christopher Pearson in The Weekend Australian, and some rather loosely argued (in my view) claims that the blogs in the advertising network were subject to a “secondary boycott”. I doubt, based […]